Cohen Communications Monitored Prior to Raid

Earlier today, NBC News reported that President Trump’s long time personal lawyer Michael Cohen’s communications had been monitored in the weeks leading up to the April 9, 2018, raid of his offices, home, and hotel room. The news came as an update to a prior NBC report, this time citing “three senior U.S. officials” who identified the means used to collect the information as a “pen register” rather than a wiretap, as the original report had indicated.

NBC’s report states that

It is not clear how long the monitoring of phone calls has been authorized, but NBC News has learned it was in place in the weeks leading up to the raids on Cohen’s offices, hotel room, and home in early April, according to one person with direct knowledge.

The calls are logged by what is commonly referred to as a pen register, which records the number of the phone that made the call and the number that received it, but does not record the contents of any conversation.

Of particular note is that, according to NBC, “At least one phone call between a phone line associated with Cohen and the White House was logged, the person said..”

More from the report:

After the raid, members of Trump’s legal team advised the president not to speak to Cohen, according to a person familiar with the discussion.

Two sources close to Trump’s attorney, Rudolph Giuliani, say he learned that days after the raid the president had made a call to Cohen, and told Trump never to call again out of concern the call was being recorded by prosecutors.

As The News Blender covered last night, former New York City mayor Rudolph “Rudy” Giuliani, the latest member to join Trump’s legal forces, told Fox News host Sean Hannity in an interview that Trump had reimbursed Cohen for the $130,000 in “hush money” paid to silence adult film star actress Stormy Daniels.

And, according to NBC:

Giuliani is also described as having warned Trump that Cohen is likely to flip on him, something Trump pushed back on, telling Giuliani that he has known Cohen for years and expects him to be loyal, according to two sources with direct knowledge of the conversations.

Giuliani’s advice would align with that of other lawyers in Trump’s circles, who have cautioned him about Cohen’s degree of loyalty to the President. Jay Goldberg, for example, a lawyer who represented Trump throughout many of his real estate and divorce proceedings during the 1990s and 2000s, recalled in an interview with the Wall Street Journal telling the President that “Michael will never stand up [for you],” adding that “The mob was broken by Sammy ‘The Bull’ Gravano caving in out of the prospect of a jail sentence.”

On a scale of 100 to 1, Goldberg said according to the WSJ’s report, where 100 is fully protecting the president, Mr. Cohen “isn’t even a 1.”

Shortly after the raid on Cohen’s office, the Justice Department said that Cohen has been “under criminal investigation” for months in New York as a result of his business dealings. In particular, the investigation is looking into the $130,000 payment from Cohen to Daniels, as well as details about the infamous 2005 “Access Hollywood” tape released a couple weeks prior to the 2016 Presidential election.

Originally, pen register devices were only allowed to collect telephone communications; however, the 2001 USA PATRIOT Act expanded the definition to include surveillance of Internet communications as well. According to Wikipedia, information that is legally collectible under 2014 laws governing pen registers includes:

Phone

• Dialed numbers
• Received call numbers
• The time the call was made
• Whether the call was answered, or went to voice-mail
• The length of each call
• Content of SMS text messages
• Post-cut-through dialed digits–(digits you dial after your call is connected, like your banking personal identification number (PIN) or your prescription refill numbers)
• The real-time location of your cell phone to within a few meters

Email

• All email header information other than the subject line
• The email addresses of the people to whom you send email
• The email addresses of people that send to you
• The time each email is sent or received
• The size of each email that is sent or received

Internet

• IP address, port, and protocol used
• The IP address of other computers on the Internet that you exchange information with
• Time-stamp and size information of internet access
• Protocol traffic analysis to obtain URL web addresses surfed on the web, emails posted or read, instant messages exchanged, and information posted onto message boards

For more information regarding the use of pen registers in collecting data, click here.

For a list of the conditions that must be satisfied for an order authorizing the use of pen registers, check out 18 U.S. Code § 3123.

Reports from last week suggested that federal investigators seized as many as 16 cell phones during the raids of his property, including “two BlackBerrys, suggesting Cohen has been holding on to his electronics for many, many years.”

It’s worth remembering that this investigation is being led by the United States Attorney’s Office for the Southern District of New York and its current Deputy U.S. Attorney Robert S. Khuzami (following interim US Attorney Geoffrey Bermans’ recusal), not special counsel for the US Department of Justice Robert Mueller.

But in any case, it seems safe to say that Cohen’s legal concerns aren’t going away any time soon.